Appeal from the United States District Court for the Eastern District of Wisconsin. Nos. 93 C 206, 93 C 43 J. P. Stadtmueller, Chief Judge.

Before COFFEY, RIPPLE and MANION, Circuit Judges.

RIPPLE, Circuit Judge.

ARGUED MAY 29, 1996

DECIDED SEPTEMBER 23, 1996

While on military assignment with the United States Marine Corps in Saudi Arabia, Corporal Arthur Oliver was killed when the MK-48 logistical support vehicle he was driving crashed and burned during a convoy operation. Corporal Erik Tate, who was riding in the MK-48, suffered severe burns in the crash. Each commenced separate products liability actions against Oshkosh Truck Corporation ("Oshkosh"), the manufacturer of the MK-48. The district court granted Oshkosh's motions for summary judgment on the basis of the government contractor defense articulated by the Supreme Court in Boyle v. United Technologies Corp., 487 U.S. 500 (1988). The plaintiffs now appeal the district court's entry of summary judgment. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I. BACKGROUND

On March 22, 1991, Corporal Arthur Oliver and Corporal Erik Tate were on military assignment with the United States Marine Corps in Saudi Arabia. Their unit was transporting food supplies from Saudi Arabia to Kuwait. Corporal Oliver was driving the fifth of thirteen MK-48 transport vehicles in the supply convoy; Corporal Tate was riding in the passenger seat. *fn1 Poor visibility from blowing dust caused the convoy to slow and, eventually, to stop. When the convoy stopped, Corporal Oliver was unable to stop his MK-48 in time to avoid a collision. His vehicle struck the right side of another MK-48 at the point where the fuel tank and exhaust pipe were located. An explosion followed. Corporal Oliver died from the burns he received in the crash. Corporal Tate suffered third-degree burns over most of his body, requiring the amputation of his left leg above the knee.

Corporal Oliver's estate and Corporal Tate brought separate product liability actions against Oshkosh, the manufacturer of the MK-48. The plaintiffs alleged that the muffler on the MK-48 was located dangerously close to the right side fuel tank. The MK-48 has two exposed seventy-five gallon fuel tanks located on each side of the vehicle. A single exhaust pipe is located on the right side of the vehicle and is positioned directly above and parallel to the right-side fuel tank. At its closest point, the exhaust pipe is 1.5 inches from the fuel tank.

Oshkosh sought summary judgment on the basis of the government contractor defense established by the Supreme Court in Boyle v. United Technologies Corp., 487 U.S. 500 (1988). Because the government contractor defense depends significantly on the extent of government participation in the design of the product in question, the parties' submissions to the district court focused on the design, testing and production phases of the MK-48 procurement process.

The materials submitted to the district court establish that, during the late 1970's, the United States Marine Corps undertook a review of its transportation needs and concluded that the heavy-duty truck segment of the existing fleet was inadequate to meet its future needs. The Corps evaluated several commercially available tractors and heavy-haul trailers but quickly determined that these designs would not be suitable for the military missions envisioned for the vehicle. In December 1978, the Marine Corps announced that it was interested in obtaining information on other commercially available heavy-duty trucks and trailers. Twenty-one manufacturers, including Oshkosh, responded to the Corps' request.

The Marine Corps developed performance specifications, selection criteria and a test-planning document for the vehicle and trailer it sought. This information was distributed to the manufacturers that had responded to the earlier inquiry. In March 1980, the Corps commenced the official procurement process by publishing a Request For Proposals ("RFP") to find a manufacturer to build a prototype MK-48. The RFP defined operational, performance and containment specifications for the vehicle sought by the Corps. Ten manufacturers, including Oshkosh, responded to the RFP by submitting proposals. A Source Evaluation Committee, consisting of non-contracting civilian and military engineers, evaluated the proposals and recommended that Oshkosh be awarded the prototype contract. Oshkosh delivered two prototype MK-48s to the Marine Corps in April 1981.

The Marine Corps assumed complete responsibility for testing the prototype MK-48s. The Corps subjected the prototypes to extensive operational, performance and durability testing and identified "literally . . . hundreds" of changes that would have to be made before a production contract was awarded. R.54, Deposition of Major John L. Wozniak, at 26. These changes were identified by the Marine Corps, conveyed to Oshkosh, and then integrated into the MK-48 design by Oshkosh. Oshkosh made all of the design changes requested by the Marines and, at the conclusion of the testing phase, the Marine Corps awarded Oshkosh the MK-48 production contract.

The production contract provides that Oshkosh has "total design responsibility" and that "the submission and approval or disapproval by the government of any changes shall in no way relieve [Oshkosh] of this total design responsibility." R.23, Ex.E, at para. C.6.1. The production contract also defined extensive performance, dimension and container requirements for the MK-48. The contract provided that, among other requirements, the MK-48 must be able to fit inside an 8 feet x 8 feet x 20 feet flat rack ANSI/ISO shipping container; be capable of external transport by helicopter; have the ability to ford up to five feet of water for up to five minutes; be able to restart a stalled engine while fording; have at least a forty-five degree angle of approach and departure; and have at least thirteen inches of ground clearance. In addition, the production contract provides that the MK-48 must comply with Federal Motor Carrier Safety Regulation 393.83, *fn2 id. at para. 3.2.9, and be "complete in all respects," id. at para. 3.1.

The initial proposal submitted by Oshkosh contemplated a single fifty-five gallon fuel tank on the left side of the vehicle, with the exhaust system mounted on the right side. At some point in the acquisition process, however, the Marine Corps increased the fuel capacity requirement. This increase led to the addition of a second fifty-five gallon fuel tank, mounted on the right side of the vehicle. When the Marine Corps increased the fuel capacity requirement a second time, Oshkosh enlarged the fuel tanks to seventy-five gallons each. Although it is not clear at what point in the design process the two modifications of the fuel capacity requirement occurred, the evidence of record suggests that the prototype vehicles delivered by Oshkosh had the dual seventy-five gallon tank configuration. Major John Wozniak, the Marine officer who administered the MK-48 contract, testified at his deposition that the Marine Corps did not request any changes in the location of the fuel tanks during the testing of the prototypes; the configuration of the fuel tanks and the exhaust system remained constant through the testing and production phases of the procurement process.

The district court granted Oshkosh's motion for summary judgment. The court took the view that, with respect to each of the plaintiffs' claims, Oshkosh had established its entitlement to the government contractor defense. Accordingly, the district court entered summary judgment in favor of Oshkosh.

II. DISCUSSION

A. Standard of ...

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